Karnataka High Court
Sri Sujay vs The State Of Karnataka on 28 August, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF AUGUST, 2017
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
WRIT PETITION NO.37678/2017 (GM-RES)
BETWEEN:
1. Sri Sujay
S/o Vijayan
Aged about 30 years
Occupation: Software Engineer
In EMC Company
R/at: No.12, 14th "A" Cross
Rameshnagar, Bengaluru City
2. Sri V.Ramesh
S/o Venkatarama Raju
Aged about 26 Years
Occupation: Software Engineer
Nokia Company
Manyatha Company, Nagavara
Presently R/at No.302
Garudadri PG, Devar Jivanhalli
Bengaluru-560035 ... Petitioners
(By Sri Vikas M, Advocate)
AND:
The State of Karnataka
By Mahadevapura Police Station
-2-
Halasuru Sub-division, Bengaluru
Represented by
Special Public Prosecutor
High Court Building
Dr. B.R. Ambedkar Veedhi
Bengaluru - 560 001 ...Respondent
(By Sri S.Rachaiah, HCGP)
This writ petition is filed under Articles 226 and
227 of Constitution of India praying to quash the entire
proceedings in Crime No.16/2016 on the file of X
Additional Chief Metropolitan Magistrate at Bengaluru
for the offences punishable under Sections 370, 342 of
IPC and Sections 3, 4, 5, 6 and 7 of ITP Act, 1956 in so
far as the petitioners are concerned at Annexure-C and
etc.
This writ petition coming on for preliminary
hearing this day, the Court made the following:
ORDER
Though matter is listed for preliminary hearing, by consent of learned advocates appearing for parties, this appeal is taken up for final disposal.
-3-
2. Heard Sri Vikas M, learned counsel appearing for petitioners and Sri S.Rachaiah, learned High Court Government Pleader appearing for respondent-State. Perused records.
3. On the basis of complaint lodged by Sri K.Abdul Azeez, Police Inspector, AHT Division, CID, Bengaluru on 08.01.2016 at 08.00 p.m., Crime No.16/2016 came to be registered against accused persons for the offences punishable under Sections 370, 342 of IPC and Sections 3, 4, 5, 6 and 7 of Immoral Traffic Prevention Act, 1956 (for short 'ITP Act').
4. In the complaint, it was alleged that on 08.01.2016 in the telephonic message received, it was informed to the Police Inspector that certain persons were carrying on prostitution activity at the premises bearing No.93, Sparsh Ayurvedic Spa and Saloon, 4th Floor, 1st Main, 3rd Cross, M.M.Enclave, Pai Layout, Bengaluru-560016, within the limits of Mahadevapura -4- police station. Based on said information complainant along with his team is said to have raided the premises and found four (4) women had been forced to indulged in prostitution activity and as such arrested the accused persons. It was further alleged in the complaint that police officials had sought the assistance of one Mr. Anil to act as decoy in the said rescue operation and he had been handed over two notes of Rs.500/- denomination, informing that police would arrive at the spot after 10 to 15 minutes after decoy proceeds to said place where the alleged prostitution activity is said to have been carried on. As planned, a raid is said to have been conducted at 04.45 p.m., and police team found there were three women in the hall and found a room which was locked from inside and after opening the door, they found that decoy Mr. Anil along with a lady, who was sitting on the bed naked and upon enquiry with Anil, he had stated that a person named Adi after receing Rs.1,000/- from him had sent him to have sex -5- with said lady in the room. Hence, they were taken to custody. On enquiry with ladies found in said house, they have stated that false assurance of getting them a job had been assured by Kumar and he had forcibly driven them to prostitution activities. It was also stated in the complaint that accused Nos.3 and 4 (petitioners) as customers had been waiting in the said hall and they had also indulged in said prostitution activity. Hence, they were also taken into custody and Crime No.16/2016 as noticed hereinabove came to be registered against accused persons. For quashing of said proceedings, accused persons/petitioners are before this Court.
5. It is the contention of Sri Vikas M, learned counsel appearing for petitioners that, ingredients of offences alleged are not made out against petitioners and contends that petitioners, who have been arraigned as accused Nos.3 and 4 are depicted as customers or -6- clients from whom accused No.1 is said to have received amount of Rs.1000/- each and contends that under similar circumstances, this Court has held that Sections 3, 4 and 5 of ITP Act would be inapplicable and the very invocation of Section 370(2) of IPC also would not be attracted at all. Hence, he prays for quashing of the proceedings.
6. It could be seen from the records that raid came to be conducted by the Inspector of Police. However, investigation has been conducted by Sub- inspector of Police and charge-sheet has also been filed by the said Sub-inspector of Police, who is not empowered as a Special Officer as contemplated under Section 13 of the ITP Act. Co-ordinate Bench of this Court in the case of SHANKARE GOWDA @ SHANKARA VS. STATE BY MADANAYAKANAHALLI POLICE STATION, BENGALURU AND ANOTHER reported in ILR 2016 KAR 3067 under similar circumstances, had -7- quashed the proceedings as the investigation conducted by the Sub-inspector of Police was held to be, not by a Special Officer as indicated in Section 13 of the ITP Act and as such it came to be held that investigation is without jurisdiction.
7. In the light of Co-ordinate Bench in Criminal Petition No.3371/2017 and Criminal Petition No.1479/2017 by order dated 24.04.2017 and 10.04.2017 respectively, having held Sections 3 to 7 of ITP Act and Section 370 of IPC would not be attracted in so far as the petitioners therein, who were also termed as customers/clients and the fact that said provisions having been held is not being attracted to customers at a brothel and petitioners being placed on similar footing, they would be entitled to the relief sought for in this petition.
8. That apart, in the light of Co-ordinate Bench having held that Sub-inspector of Police unless -8- competent to investigate, would not be entitled to investigate and any investigation so conducted would be without jurisdiction and in the instant case, investigation having been conducted by Sub-Inspector of Police, this Court is of the considered view that proceedings initiated by respondent against petitioners cannot be continued. Mandate of Section 13 of the ITP Act clearly disclose that Inspector of Police or any other officer above the rank of Police Inspector alone can be appointed as Special Officer under Section 13 of ITP Act. In the instant case, it requires to be noticed at the cost of repetition that investigation has been conducted by Sub-Inspector and charge-sheet has been filed by Sub- Inspector, who is not a Special Officer appointed under Section 13 of ITP Act. Hence, this Court is of the considered view that continuation of the proceedings against petitioners would be an abuse of process of law.
9. Hence, the following:
-9-
ORDER
(i) Writ petition is hereby allowed.
(ii) Proceedings pending in Crime
No.16/2016 on the file of X Additional
Chief Metropolitan Magistrate at
Bengaluru against petitioners for the
Offences punishable under Sections 370, 342 of IPC and Sections 3, 4, 5, 6 and 7 of ITP Act, 1956 are hereby quashed.
SD/-
JUDGE KMV/NC*